United States Court of Appeals

For the Eighth Circuit

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No. 16-3958

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Walter Jones

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Waterloo

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 Submitted: October 16, 2017

 Filed: December 7, 2017

[Unpublished]

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Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.

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PER CURIAM. 

Walter Jones appeals his 27-month sentence imposed following his plea of

guilty to being an unlawful drug user in possession of a firearm. Jones contends that
the district court erred in applying a four-level sentencing enhancement under

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U.S.S.G. § 2K2.1(b)(6)(B)for possessing a firearmin connection with another felony

offense. Specifically, Jones argues that the enhancement impermissibly double

counted his offense conduct and violates the Ex Post Facto Clause of the United

States Constitution. He also argues that his sentence is substantively unreasonable.

We affirm.

I. Background

Jones pleaded guilty to being an unlawful drug user in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(3). The presentence investigation report (PSR)

recommended a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B), which

provides that “[i]f the defendant . . . used or possessed any firearm or ammunition in

connection with another felony offense; or possessed or transferred any firearm or

ammunition with knowledge, intent, or reason to believe that it would be used or

possessed in connection with another felony offense, increase by 4 levels.” The PSR

found that Jones “possessed the firearm in connection with the felony offense of

Carrying Weapons, in violation of Iowa Code Section 724.4(1).” Presentence

Investigation Report at 5, ¶ 11, United States v. Jones, No. 6:11-cr-02014-LRR-2

(N.D. Iowa July 29, 2016), ECF No. 153. According to the PSR, “[t]he parties agreed

to litigate whether a 4-level increase applies pursuant to USSG § 2K2.1(b)(6)(B).” Id.

at 3, ¶ 3B. 

In his sentencing memorandum, Jones argued that application of the

enhancement would constitute impermissible double counting and would violate the

Ex Post Facto Clause. Sentencing Memorandum By Defendant at 1–2, United States

v. Jones, No. 6:11-cr-02014-LRR-2 (N.D. Iowa Aug. 25, 2016), ECF No. 159.

Specifically, Jones argued that United States v. Walker, 771 F.3d 449 (8th Cir. 2014),

The Honorable Linda R. Reade, United States District Judge for the Northern 1

District of Iowa.

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“was wrongly decided and isin fact double counting asthe holding scoresthe offense

and the integrated offense of Carrying Weapons in violation of Iowa Code § 724.4(1)

as an enhancement within the USSG.” Id. at 1. Furthermore, Jones argued that

“Walker now in 2016 provides a more severe punishment than the USSG did for the

defendant back in 2011.” Id. at 2. Jones asserted that “Walker has the force and effect

of any law and as such is a violation of the Ex Post Facto Clause to [him].” Id. at 4.

Jones also requested a downward variance under 18 U.S.C. § 3553(a). 

At the sentencing hearing, the district court applied Walker and discerned no

ex post facto violation. The court adopted the PSR’s Guidelines range of 21 to 27

months’ imprisonment. The district court sentenced Jones to 27 months’

imprisonment. In arriving at this sentence, the district court stated that it had

“carefully considered each and every factor under 18 United States Code section

3553(a).” Transcript of Sentencing at 19, United States v. Jones, No.

6:11-cr-02014-LRR-2 (N.D. Iowa Oct. 4, 2016), ECF No. 175. It also acknowledged

Jones’s argument for a downward variance and explained why it declined to vary

downward. Specifically, it found no unwarranted disparity between Jones and his

codefendant Asa Adams. Adams had received a sentence of 16 months’

imprisonment. The court noted important distinctions between the two cases. Unlike

Adams, the court found that Jones had prior criminal convictions for domestic

violence and possession of marijuana. Additionally, unlike Adams, who “came to

court and took responsibility for his actions,” id. at 20, “Jones was a fugitive from

justice” who “knew for sure that there was a federal matter that he needed to respond

to,” yet declined to do so and went “on the lam . . . putting the marshals to extra time

and expense to track him down.” Id. at 21. Further, the court noted that although

Adams initially received a lower sentence, his sentence increased due to subsequent

violations ofsupervised release. In fact, Adams has actually served significantlymore

time than the sentence imposed upon Jones. 

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As to Jones’s employment history, the court noted that, contrary to Jones’s

claims of continued employment, social security records showed no earnings “for

2007, 2011, 2013, 2014, and 2015. He has $4,994 of earnings reported in 2012, but

he hasn’t reported any work during that period.” Id. at 22. As a result, the court found

“a real disconnect between what he says he’s been doing and what the objective

records show.” Id. Finally, the court considered Jones’s education, history of

marijuana abuse, and family support before imposing the 27-month sentence. 

The district court 

add[ed] parenthetically that in the event the Eighth Circuit Court of

Appeals should find in the future that[the court] ha[s] incorrectly scored

the four-level [enhancement] . . . , [the] sentence would be exactly the

same when [the court] view[s] the aggravating factors, the fugitive status

of Mr. Jones, and the facts and circumstances in the offense conduct

paragraph 5 as well as his criminal history. 

Id. at 24–25.

II. Discussion

On appeal, Jones argues that the district court’s application of the four-level

sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm

in connection with another felony offense constitutes impermissible double counting

and violates the Ex Post Facto Clause of the United States Constitution. He also

argues that his sentence is substantively unreasonable.

A. U.S.S.G. § 2K2.1(b)(6)(B)

We first address Jones’s argument that the district court erred in applying the

four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) to his state conviction for

carrying weapons, in violation ofIowa Code § 724.4(1), because it constitutes double

counting.

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“We review the district court’s construction and application of the sentencing

guidelines de novo, and we review its factual findings regarding enhancements for

clear error.” United States v. Cordy, 560 F.3d 808, 817 (8th Cir. 2009). “We review

de novo whether the district court’s application of the sentencing guidelines amounts

to impermissible double counting.” United States v. Peck, 496 F.3d 885, 890 (8th Cir.

2007).

The Guidelines provide that the four-level enhancement at issue is warranted

“[i]f the defendant . . . used or possessed any firearm or ammunition in connection

with another felony offense; or possessed or transferred any firearm or ammunition

with knowledge, intent, or reason to believe that it would be used or possessed in

connection with anotherfelony offense.” U.S.S.G. § 2K2.1(b)(6)(B). “Another felony

offense” is defined as “any Federal, state, or local offense, other than the explosive

or firearms possession or trafficking offense, punishable by imprisonment for a term

exceeding one year, regardless of whether a criminal charge was brought, or a

conviction obtained.” U.S.S.G. § 2K2.1 cmt. n.14(C).

In Walker, the defendant was convicted of being a felon in possession of a

firearm. 771 F.3d at 450. The defendant’s PSR recommended application of the fourlevel enhancement under § 2K2.1(b)(6)(B). Id. at 451. At sentencing, the government

argued that the defendant’s conduct “violated Iowa Code § 724.4(1), an aggravated

misdemeanor that qualifies as ‘another felony offense’ because it is punishable by

imprisonment for up to two years.” Id. The district court imposed the enhancement,

and the defendant appealed. Id. We upheld the imposition of the enhancement,

rejecting the argument that the application of the enhancement constitutes double

counting:

[The defendant] was not “doomed to automatically commit the

additional felony when he violated 18 U.S.C. § 922(g) by possessing a

firearm as a felon.” [United States v. Jackson, 633 F.3d 703, 707 (8th

Cir. 2011).] Iowa Code § 724.4(1), unlike 18 U.S.C. § 922(g), requires

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proof that the defendant went armed “with a dangerous weapon

concealed on or about the person,” or went armed with a handgun

“within the limits of any city,” or “knowingly carrie[d] or transport[ed]

[a handgun] in a vehicle.” (Emphasis added). Thus, § 724.4(1) does not

fall within the narrow Note 14(C) exclusion for “the . . . firearms

possession . . . offense” (emphasis added), and applying the four-level

enhancement in U.S.S.G. § 2K2.1(b)(6) does not implicate the “double

counting” concerns underlying our decision in [United States v.]

Lindquist, 421 F.3d [751,] 756 [(8th Cir. 2005)]. Rather, [the defendant]

“used . . . [the] firearm . . . in connection with another felony offense”

when he was involved in the shooting at 1405 Idaho Street. Therefore,

the district court did not err in imposing the four-level enhancement.

Id. at 452–53 (third, fourth, fifth, and tenth alterations in original) (ellipses in

original). 

We have repeatedly reaffirmed our holding in Walker and rejected the

argument that application of the enhancement to Iowa Code § 724.4(1) constitutes

double counting. See, e.g., United States v. Maldonado, 864 F.3d 893, 901 (8th Cir.

2017); United States v. Parrow, 844 F.3d 801, 804 (8th Cir. 2016) (per curiam);

United States v. Hicks, 668 F. App’x 683, 685 (8th Cir. 2016) (per curiam); United

States v. Davis, 667 F. App’x 584, 585 (8th Cir. 2016) (per curiam). 

Jones next argues that imposition of the four-level enhancement violates the

Ex Post Facto Clause because Walker became circuit law after he committed the

underlying offense. Jones is incorrect. “The ex post facto clause does not apply to

actions by the judiciary . . . .” United States v. Wade, 435 F.3d 829, 832 (8th Cir.

2006) (per curiam).

Accordingly, we hold that the district court did not err in applying the fourlevel enhancement. 

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B. Substantive Reasonableness

Jones argues that the district court imposed an unreasonable sentence in light

of all the 18 U.S.C. § 3553(a) factors, including the need for his punishment to be in

proportion to that of his codefendant, who received a more lenient sentence of 16

months’ imprisonment.

Because Jones’s 27-month sentence is within the Guidelines range, we may

apply “a presumption of reasonableness” to his sentence. United States v. Bauer,

626 F.3d 1004, 1010 (8th Cir. 2010). Jones must rebut this presumption. Peck, 496

F.3d at 891.

The record shows that the district court carefully considered all of the

§ 3553(a) factors in arriving at Jones’s Guidelines sentence. The court considered

Jones’s argument that his sentence created an unwarranted sentencing disparity

between himself and his codefendant and rejected it, finding meaningful distinctions

between the two defendants’ cases. The court individually assessed Jones’s case

based on its particular facts. On this record, we conclude that the 27-month sentence

is not unreasonable. See United States v. Stults, 575 F.3d 834, 849 (8th Cir. 2009)

(“Where the district court in imposing a sentence makes ‘an individualized

assessment based on the facts presented,’ addressing the defendant’s proffered

information in its consideration of the § 3553(a) factors, such sentence is not

unreasonable.” (quoting Gall v. United States, 552 U.S. 38, 50 (2007))). 

III. Conclusion

Accordingly, we affirm the judgment of the district court. 

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